Out-Law / Your Daily Need-To-Know
Courts in South Africa have been sending an unmistakable message to litigants: mandatory mediation is no longer a procedural formality that parties can sidestep
South African courts are now treating mandatory mediation as a strict procedural requirement, not a soft suggestion, with recent High Court practice – particularly in Gauteng – demonstrating a clear judicial stance of stopping parties from opting out of mediation in favour of litigation
This has increasing significance for those looking to bring actions in the country, with litigants being told to meaningfully engage with mediation, and attempts to waive it – either by preference or, indeed, agreement – increasingly being rejected
Growing trend
Courts have indicated that mediation is a compulsory procedural step, and failure to comply can result in matters being struck from the roll, even where parties jointly wish to proceed directly to trial
This approach is reflected in the enforcement trend we recently highlighted, where the court treated non‑engagement with mediation requirements as a barrier to progressing litigation. Judicial directives now require litigants to meaningfully engage with mediation and provide compelling, contextual reasons if they seek to avoid it
Merely asserting that mediation will not assist is no longer sufficient. The broader mediation directive confirms that courts expect compliance and view mediation as an essential case management tool rather than a voluntary ADR option
The underlying rational behind this is systemic, as severe case backlogs have made mediation a necessary filter. Parties attempting to bypass mediation are therefore seen as potentially undermining judicial efficiency and access to justice
Building on this judicial stance, the Gauteng High Court’s reasoning in Adidas International Trading AG (Switzerland) and Another v Commissioner for the South African Revenue Service reinforces the message that mandatory mediation is not a dispensable formality but a binding procedural gateway
In that matter, Adidas sought to move its R1.9 billion tax dispute to the Western Cape, expressly to avoid the Gauteng mediation directive. The court rejected this attempt, holding that dissatisfaction with the mediation process or predictions that it may cause delay do not constitute legitimate grounds to bypass a mandatory step built into the division’s case flow management framework
The court also scrutinised the parties’ abandonment of mediation altogether, finding that Adidas’s strategic decision to circumvent the directive by launching a transfer application could not override the institutional purpose of the mandatory mediation regime. Non‑engagement, the court stressed, cannot be retrofitted into a jurisdictional argument, particularly when the case’s factual witnesses, audit locus and prior correspondence all demonstrated that the matter’s centre of gravity did not justify relocation.
Their avoidance of mediation therefore weighed heavily against them and reinforced the court’s reluctance to permit any workaround
Ultimately, the ruling confirms that mandatory mediation forms a structural safeguard within the Gauteng courts’ strategy to manage overwhelming civil litigation backlogs. By affirming that even high‑value, technically complex matters, such as the Adidas customs valuation dispute, remain subject to mediation, the court underscored that litigants cannot unilaterally decide when mediation is “unsuitable.”
Instead, meaningful participation is now an essential precondition to accessing the trial roll, and attempts to avoid it are treated as undermining the integrity and efficiency of the judicial system
Practical impact
For litigants across commercial, civil and personal injury sectors, the current approach has significant implications – particularly for those litigating in Gauteng where judicial backlogs are the most acute
As a result, failure to comply with the new regime shows that non‑compliance can jeopardise a party’s ability to proceed. Parties who unreasonably refuse mediation risk being landed with adverse cost orders – now an explicit way of discouraging obstructionism
For businesses, particularly SMEs, the new direction may prove one that’s much more beneficial. As mediation becomes a central procedural stage rather than an optional alternative, it may accelerate positive outcomes where once debt recovery could long be delayed by the court backlogs
For all organisations, however, being ready to integrate mediation into their strategic approach to litigation is essential
Firms that show they can engage credibly and leverage mediation as a tool, not an obstacle, in managing legal risk will find themselves better placed to benefit from the new court approach in South Africa
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